1. The Decision to Conduct an Internal Investigation

1.1 What statutory or regulatory obligations should an entity consider when deciding whether to conduct an internal investigation in your jurisdiction? Are there any consequences for failing to comply with these statutory or regulatory regulations? Are there any regulatory or legal benefits for conducting an investigation?

Corporate entities should consider regulatory reporting obligations, which may indirectly compel them to investigate internal incidents. Entities regulated by the Swiss Financial Market Supervisory Authority (“FINMA”), for example, have ongoing obligations to proactively notify material events as soon as they occur. FINMA regularly also orders entities under its supervision to provide information and produce documents relating to incidents that come to its attention. The stock exchange, SIX Swiss Exchange, also imposes ad hoc notification obligations, and financial intermediaries have duties to investigate and report any suspicious activity they come across to the Swiss Money Laundering Reporting Office. Sanctions for non-compliance can be serious, and conducting an internal investigation is often the only way for an entity to systematically collect, process and evaluate information to ensure that it is in a position to comply with its reporting duties. It is a criminal offence attracting a fine of up to CHF 250,000 for a person to negligently provide FINMA with incorrect information, while intentional non-compliance bears a maximum sentence of three years’ imprisonment. Sanctions against the entity can be as severe as revocation of the entity’s licence to engage in business, particularly in repeated cases of misconduct.

Corporate entities should also bear in mind that regulators, such as FINMA, usually have the supervisory authority to order internal investigations and, if necessary, to appoint an independent investigator (usually a law firm or an audit firm) to do so. Being able to show that it has already conducted an independent and thorough investigation into a matter is often a good argument against an enforced external appointment and allows the entity to preserve a degree of control over its internal affairs. Investigating a matter early on also gives an entity time to prepare responses to government or media enquiries before they arise.

Entities must also consider that they can be held criminally liable for failure to take adequate measures to detect or prevent the commission of offences within their organisation. An entity can either be convicted for failing to implement reasonable measures to prevent any one of a catalogue of specific offences, such as bribery (known as primary corporate criminal liability); or, if it does not have adequate corporate and compliance structures in place to identify the natural person responsible for an offence, it can be held (secondarily) liable for any felony or misdemeanour committed during the ordinary course of its business. One of the benefits of investigating is that it can be considered a mitigating factor at sentencing (cf. question 2.1 below).

A further incentive to investigate is that Swiss company law imposes duties of care on an entity’s board of directors and its executive organs personally, which could require them to set up compliance and control systems to detect, investigate and remediate misconduct. Key employees, such as senior management or compliance officers, may also be held criminally liable for failing to take action to prevent criminal conduct within their organisations.

Statutory leniency programmes in competition law offer complete or partial immunity from sanction if companies report unlawful restraint of competition before others do. This can also motivate entities to proactively take early steps to investigate.

1.2 How should an entity assess the credibility of a whistleblower’s complaint and determine whether an internal investigation is necessary? Are there any legal implications for dealing with whistleblowers?

A whistleblower’s complaint should always be investigated with care and diligence. An entity’s exact response will depend on the nature of the complaint and the circumstances. Corporate entities should maintain internal policies that set out a procedure for handling complaints (including, for example, the independent verification of facts, conducting interviews, etc. and timelines for taking action) and guidelines on the considerations that are relevant when assessing the credibility of a complaint (for example, the availability of corroborating reports and evidence, gravity of the allegations, past conduct and possible grounds for bias). The guidelines should ensure that immediate measures are taken to preserve relevant evidence, the facts are adequately investigated and the investigations are documented. If a complaint is substantiated, steps should also be taken to sanction and remediate the misconduct.

Currently, Swiss law does not offer any statutory protection for whistleblowers. Recent proposals to introduce protection are unlikely to be adopted in legislation. Whistleblowers who breach confidentiality and secrecy obligations (for example, by leaking protected information to the public) thus remain subject to criminal sanction. Nonetheless, from a compliance perspective, it is considered best practice for entities to have reliable avenues for their employees to report suspected misconduct free from any risk of reprisal. Terminating a whistleblower’s employment solely because he has made a complaint can constitute unfair dismissal.

1.3 How does outside counsel determine who “the client” is for the purposes of conducting an internal investigation and reporting findings (e.g. the Legal Department, the Chief Compliance Officer, the Board of Directors, the Audit Committee, a special committee, etc.)? What steps must outside counsel take to ensure that the reporting relationship is free of any internal conflicts? When is it appropriate to exclude an in-house attorney, senior executive, or major shareholder who might have an interest in influencing the direction of the investigation?

The facts surrounding the specific investigation will determine which person is best placed to be the outside counsel’s reporting point within the client entity. The reporting lines to the client should be clearly defined at the outset. This person or persons will usually coordinate the investigation internally and outside counsel will report its findings to them. Outside counsel should consider how the investigation was initiated, the nature and seriousness of the allegations, the seniority of the persons involved, the likelihood that reporting obligations are triggered and the scope for media interest when determining who would be the appropriate “client”. Although in-house counsel do not enjoy legal professional privilege in Switzerland, in multi-jurisdictional investigations, it may make sense to ensure the client is or includes an in-house counsel so that communications are privileged. In practice, the client is often a member of the legal department in smaller investigations. It can be more appropriate and efficient to establish a special committee to oversee larger or more sensitive investigations.

To ensure the reporting relationship is free of conflicts, outside counsel must ensure that the (internal and external) investigation team does not include any persons who were involved in the matters under investigation or who are personally or directly affected by its outcome. Outside counsel should insist on having full and unfettered access to the entity’s internal records and its employees, so that it can make appropriate recommendations regarding the team members. It would be appropriate to exclude an in-house attorney, senior executive or major shareholder from an investigation, if he or she is implicated by the underlying subject-matter, attempts to influence the outcome and findings of the investigation or otherwise compromises its independence and integrity.

2. Self-Disclosure to Enforcement Authorities

2.1 When considering whether to impose civil or criminal penalties, do law enforcement authorities in your jurisdiction consider an entity’s willingness to voluntarily disclose the results of a properly conducted internal investigation? What factors do they consider?

Yes, they do. As mentioned above, companies that (first) report unlawful infringements voluntarily can be granted immunity in competition law. In 2019, for instance, the Swiss Competition Commission fined eight car leasing companies a total of CHF 30 million for anti-competitive conduct, while exempting the company that reported the conduct.

In criminal proceedings, law enforcement authorities generally take into account factors, such as an offender’s remorse and whether reasonable efforts have been made to remediate wrongdoing. An entity’s willingness to disclose the results of an internal investigation can also qualify as a mitigating factor. In 2017, Switzerland saw the first reported instance of a company being rewarded for self-disclosing criminal conduct to the authorities. The company self-reported its liability for failing to take adequate measures to prevent the bribery of foreign public officials, and shared reports from an investigation conducted by outside counsel. The authorities rewarded its admission of guilt, full cooperation and commitment to improving its compliance systems by reportedly reducing the penalty from CHF 3.5 million to the symbolic sum of CHF 1. As is usually always the case, the company was nonetheless also ordered to disgorge its profits from the illegal activity.

2.2 When, during an internal investigation, should a disclosure be made to enforcement authorities? What are the steps that should be followed for making a disclosure?

In competition law, companies may need to disclose any impropriety early on in order to benefit from the statutory leniency programme (cf. question 2.1 above). Otherwise – and save for any ad hoc reporting obligations that might apply – a company is generally free to disclose whenever it feels appropriate. The following considerations are relevant to the timing of self-disclosure: the potential disruption that disclosure could cause to the fact-finding process; the need for state support in securing evidence, freezing assets or interrogating and apprehending suspects; and the likely knock-on effects, such as litigation, requests for assistance from domestic or foreign authorities, media coverage or whistleblowers.

As soon as the authorities become involved, a company will lose its autonomy over the investigation and will be forced to react to external pressures and unknowns. From a strategic point of view, it should not self-report before it is satisfied that it has a clear understanding of the main aspects of the misconduct at issue, its implications and the actors involved (even if all the details are not known yet).

2.3 How, and in what format, should the findings of an internal investigation be reported? Must the findings of an internal investigation be reported in writing? What risks, if any, arise from providing reports in writing?

In cases where the authorities order an investigation, findings must usually be reported in writing. The findings of an investigation conducted voluntarily should also be in writing if the company intends to cooperate with the authorities. While there is no formal requirement to do so, submitting a written compilation of the most relevant facts usually demonstrates the greatest degree of transparency, cooperation and contrition.

The risks that arise from written reporting are primarily related to legal professional privilege and confidentiality. Reports prepared by outside counsel may be held not to be (fully or partially) privileged from disclosure and can be used against a company. This is particularly the case in financial compliance and money laundering investigations. According to the case law of the highest Swiss court, the Federal Supreme Court, documents relating to investigations that a bank is required to undertake under anti-money laundering legislation do not become privileged simply because the investigations are outsourced to lawyers. The authorities, who may themselves be subject to duties to cooperate with other domestic or foreign authorities, may also circulate written reports further than their intended audience and the risk of information being leaked to the press is more pronounced with written reports. To the extent that a report contains information pertaining to employees and third parties, any unauthorised disclosure could also have legal consequences for the company. Companies are advised to engage with the authorities on the format, scope and use of their reports prior to disclosure.

3. Cooperation with Law Enforcement Authorities

3.1 If an entity is aware that it is the subject or target of a government investigation, is it required to liaise with local authorities before starting an internal investigation? Should it liaise with local authorities even if it is not required to do so?

Except for in regulated markets, entities subject to government investigations are not required to liaise with the authorities. It is, nonetheless, advisable that entities do inform the authorities if they intend to commence their own investigations in parallel because they otherwise risk frustrating the government’s fact-finding and, at worst, expose themselves to allegations of tampering with or destroying evidence. Maintaining good relations with the authorities can generate goodwill and potential credit at sentencing, and the authorities can be a valuable source of information regarding any prospective coercive measures or collaboration with foreign authorities. By being in contact with the authorities, an entity may, for example, avoid the disruption of its premises being searched by agreeing upon the voluntary production evidence instead.

3.2 If regulatory or law enforcement authorities are investigating an entity’s conduct, does the entity have the ability to help define or limit the scope of a government investigation? If so, how is it best achieved?

No. In criminal proceedings, the prosecuting authorities will define the scope of their investigations independently and without formal input from the concerned parties. There may be more flexibility and opportunity to informally influence an investigation if it is ordered or conducted by regulators such as FINMA. Regulators regularly discuss what would be a reasonable scope of investigation, the most efficient methodology and what deadlines are realistic with the entities under supervision. While law enforcement entities will usually not involve themselves much or at all in an entity’s own internal investigations, we have noticed a trend towards the more collaborative US model for investigations. We expect that the Swiss authorities may also expect to be more involved in purely internal investigations in future.

3.3 Do law enforcement authorities in your jurisdiction tend to coordinate with authorities in other jurisdictions? What strategies can entities adopt if they face investigations in multiple jurisdictions?

Yes, law enforcement authorities in Switzerland regularly coordinate and cooperate with authorities in other jurisdictions. A number of treaties and legislation govern the capacity and procedure for the Swiss enforcement authorities to cooperate with their international counterparts. We have recently observed an increase in cases involving international cooperation and coordination (e.g. the numerous tax evasion matters involving Swiss banks, the FIFA scandal involving arrests being made in Zurich and the multi-jurisdiction investigations in the Petrobas/Odebrecht affair, etc.). In a highly controversial decision this summer, the Federal Supreme Court even held that Swiss Federal Tax Administration can provide administrative assistance in cases where foreign tax authorities make broad or “fishing” requests for information without showing specific grounds for breach of tax law. It remains to be seen whether this reasoning will be applied to future cases.

If an entity faces being investigated in multiple jurisdictions, it is almost always in its best interests for the various proceedings to be coordinated and resolved globally. Multiple investigations bring with them the risk of delays, repeated business disruption, double jeopardy, overlapping sanctions and sustained reputational damage. Although an entity cannot control the authorities’ willingness to coordinate, it can attempt to influence them by making appropriate disclosures. The best course of action will vary depending on the circumstances of the case and will almost inevitably require an entity to seek legal advice in all the jurisdictions concerned.

4. The Investigation Process

4.1 What steps should typically be included in an investigation plan?

An investigation plan should clearly set out the scope of the investigation (e.g. jurisdiction, subject matter, business area, time-frame, etc.), its purpose and the legal issues that should be addressed by outside counsel during the investigation.

4.2 When should companies elicit the assistance of outside counsel or outside resources such as forensic consultants? If outside counsel is used, what criteria or credentials should one seek in retaining outside counsel?

If companies decide to engage outside counsel, they should do so early on in an investigation to maximise the procedural protection over the communications and work product generated during the investigation. The nature, scope and budget of an investigation will determine whether additional external consultants should be engaged. The main reasons for using outside counsel are: to maximise the chances of the investigation results being privileged; to ensure the investigation is independent and free from conflicts of interests; to obtain an independent perspective on the issues; to lend the factual findings and legal conclusions neutrality and credibility; and to engage with the authorities. For cross-border investigations, it is also worth noting that Swiss in-house counsel do not enjoy legal professional privilege (cf. question 5.3 below). The criteria for selection should reflect those reasons. Outside counsel should be selected based on: their know-how and experience in conducting investigations; their reputation for being independent; their history of engaging with the authorities; the resources they have to deal with investigations; and, in cross-border investigations, their track record for collaborating with foreign counsel and dealing with cross-border issues.

5. Confidentiality and Attorney-Client Privileges

5.1 Does your jurisdiction recognise the attorney-client, attorney work product, or any other legal privileges in the context of internal investigations? What best practices should be followed to preserve these privileges?

Yes, Swiss law does recognise the confidentiality of documents and material relating to the attorney-client relationship. The scope of the privilege can vary depending on the type of proceedings involved but, typically, it only applies to lawyers registered to practise law in Switzerland and, under certain circumstances, in EU and EFTA countries. Provided the documents and material relate to an engagement for the provision of typical legal services, privilege can extend to: confidential information that a client shares with his lawyer; information from other sources; the lawyer’s own work product; and even the work product of the client or third parties. Privilege, however, does not cover pre-existing evidence created outside the scope of a lawyer’s engagement.

Although the conduct of internal investigations can potentially qualify as the provision of a typical legal service, caution is required in investigations involving statutory anti-money laundering and general regulatory banking compliance obligations. The Federal Supreme Court has recently reiterated its view that the work product of attorneys in an investigation will not be privileged if the client was under a statutory or regulatory obligation to take the investigative steps in any event. It remains to be seen whether this reasoning is applied beyond anti-money laundering and financial compliance investigations.

Best practices to maximise the prospects of claiming legal privilege include defining the scope of a lawyer’s engagement and the legal issues to be addressed at the outset of an investigation, and keeping particularly sensitive documents in outside counsel’s custody.

In criminal proceedings, both legal entities and natural persons are also entitled to claim privilege against self-incrimination. The principle is usually interpreted restrictively for legal entities and cannot be used to circumvent statutory obligations to keep records, such as under anti-money laundering legislation.

5.2 Do any privileges or rules of confidentiality apply to interactions between the client and third parties engaged by outside counsel during the investigation (e.g. an accounting firm engaged to perform transaction testing or a document collection vendor)?

Third parties who are engaged to support outside counsel can fall under instructing legal counsel’s privilege if they qualify in law as a person assisting them. Anyone from administrative staff, forensic experts, accounting firms or private detectives can qualify as a “person assisting” a lawyer, provided that the lawyer exercises the requisite degree of direction and supervision over them. If so, the third party would be bound by the same professional rules of confidentiality as the lawyer. Best practices for engaging third parties include: defining the scope of the collaboration in writing; regular reporting to the outside counsel; copying counsel in all communications with the third party; and ensuring the third party agrees to adequate confidentiality undertakings.

No, they do not. The current position under Swiss law is that legal professional privilege and professional duties of confidentiality do not extend to in-house counsel. Recent proposals to change the law have failed. A further proposal to confer privilege on in-house counsel in civil proceedings is currently underway but unlikely to be decided before 2021 at the earliest. Note, however, that communications with patent attorneys may be privileged regardless of whether they are in-house or not.

5.4 How can entities protect privileged documents during an internal investigation conducted in your jurisdiction?

Legal privilege is best ensured by engaging independent counsel early on in an investigation and clearly defining the legal services they must provide. All communications and work products should be shared on a confidential basis and with a pre-defined circle of persons, on a “need-to-know” basis only as privilege could be lost if information is deemed to have lost its confidential nature. As a matter of practicality, privileged material should be marked accordingly and stored separately to make it easier to identify.

5.5 Do enforcement agencies in your jurisdictions keep the results of an internal investigation confidential if such results were voluntarily provided by the entity?

Enforcement agency employees are usually bound by official secrecy and must keep information they become aware of during the exercise of their duties confidential. At the same time, however, they are often bound to notify other authorities, including criminal prosecutors, of any unlawful conduct that comes to their attention, be it in the context of information provided voluntarily or otherwise. While this can discourage companies from volunteering the results of their investigations, the Swiss authorities have shown that they can be sympathetic to companies torn between regulatory disclosure and criminal self-incrimination. FINMA, for example, has been known to refuse requests by criminal prosecutors to share internal investigation reports that it has been given voluntarily, on the basis that this would discourage cooperation in the long term and thus compromise its ability to supervise. We recommend carefully reviewing the applicable regulatory rules prior to any disclosure and, if necessary, addressing concerns directly to the relevant enforcement agency.

6. Data Collection and Data Privacy Issues

The collection and use of personal data is generally governed by the Federal Data Protection Act of 19 June 1992 (“DPA”) and the Data Protection Ordinance. These provisions are currently subject to comprehensive statutory revision and the revised DPA is currently under parliamentary discussion. Proposed legislative changes would exclude legal entities from the existing scope of data protection provisions, increase sanctions for non-compliance and introduce a duty to notify data breaches.

Provisions in the newly introduced General Data Protection Regulation of the European Union (“GDPR”) may apply to Swiss companies to the extent that they process personal data in connection with offering goods or services to data subjects in the EU or monitoring their conduct within the EU. Swiss companies subject to the GDPR must also comply with the notification obligation pursuant to the GDPR.

Employment law provisions in the Code of Obligations also impose duties of care on employers, which may restrict what data can be reviewed in an investigation. A Swiss court recently reiterated that an employer may only process data if it is necessary for the performance of the employment relationship and interpreted this principle as prohibiting the employer from reviewing its employees’ WhatsApp messages.

Swiss “blocking provisions” intended to protect Swiss sovereignty can also affect the collection and transfer of data from Switzerland. Article 271 CC, for example, prohibits the direct or indirect performance on Swiss territory of acts, which falls within the exclusive competence of the Swiss public authorities, including taking evidence in Switzerland, on behalf of a foreign state. Acting “on behalf of a foreign state” is interpreted widely to include acts in the interests of a foreign state and a number of foreign regulatory bodies are deemed to qualify as foreign state authorities, including, for example, the US Financial Industry Regulatory Authority. As a result, collecting documentary or oral evidence in Switzerland can require government authorisation or international judicial assistance.

6.2 Is it a common practice or a legal requirement in your jurisdiction to prepare and issue a document preservation notice to individuals who may have documents related to the issues under investigation? Who should receive such a notice? What types of documents or data should be preserved? How should the investigation be described? How should compliance with the preservation notice be recorded?

Specific legal provisions impose general document retention obligations, such as in corporate and federal tax law (10 years); however, unless an authority has specifically ordered evidence to be preserved, there is no legal requirement to preserve documents in connection with litigation and/or regulatory proceedings. Nonetheless, it is common practice for companies to issue data preservation notices when litigation and/or regulatory proceedings become reasonably foreseeable, particularly as it ensures compliance with obligations in other jurisdictions. It follows that there are no formal Swiss requirements on how such notices should be issued. Data protection laws limit what data can be preserved and, therefore, to whom preservation notices should be issued. Only the data pertaining to employees who are likely to have business-related information that is relevant to the investigation should be preserved. Unless there are reasonable grounds to believe that notification would risk data destruction and/or compromise the confidentiality of an investigation, the notice should inform the recipient of the background to the investigation, the purpose of preservation and the anticipated use of the preserved data. A common-sense approach should be taken to recording compliance with the notices to ensure that the data is admissible in legal, regulatory or other proceedings in Switzerland and abroad.

6.3 What factors must an entity consider when documents are located in multiple jurisdictions (e.g. bank secrecy laws, data privacy, procedural requirements, etc.)?

An entity must consider a separate set of rules on data privacy, employment law, legal professional privilege, confidentiality and, potentially, blocking statutes in each jurisdiction in a cross-border investigation. The entity should bear in mind that the process of ensuring that the collection, transfer and use of documents complies with the requirements in each of these legal systems can be time-consuming and requires careful coordination. Cross-border data transfers alone can require obtaining the consents or waivers from each affected data subjects, notification of or authorisation from the relevant authorities, the agreement of a data transfer framework and/or document redaction. Entities should plan ahead and also notify their regulators of foreign rules that could restrict their ability to share information in order to manage expectations.

6.4 What types of documents are generally deemed important to collect for an internal investigation by your jurisdiction’s enforcement agencies?

There are no specific guidelines governing document collection in internal investigations. The types of documents that could be important depend on the nature of the investigation. In their own investigations, the criminal authorities must consider all relevant evidence that has been obtained lawfully and in accordance with current scientific technology and practices. Admissible evidence can include anything from GPS data, to internet scripts, to any type of electronically stored information. Companies are therefore advised to collect any and all the evidence that is necessary to investigate the issues and allegations, including: hard copy data (e.g. archives, files, minutes of meetings, policies, HR files, etc.); electronically stored information (e.g. email records, databases, online servers, locally stored data repositories, journals/logbooks, back-up and legacy systems); lawfully obtained telephone and audio-visual recordings; oral evidence (e.g. from current and former employees and third-party witnesses); and any expert or specialised data (e.g. analyses on price movements, payments transactions, etc.).

6.5 What resources are typically used to collect documents during an internal investigation, and which resources are considered the most efficient?

The resources used to collect documents during an investigation vary greatly depending on its scope and funding. In larger investigations, it is commonplace for the latest scientific technology to be used to collect and process data (e.g. electronic imaging, e-discovery solutions and specialist IT or forensic accounting methods). It is usually considered most efficient to use comprehensive e-discovery programmes, which enable multiple data processing functionalities, such as searching, threading, tagging, redaction and production.

6.6 When reviewing documents, do judicial or enforcement authorities in your jurisdiction permit the use of predictive coding techniques? What are best practices for reviewing a voluminous document collection in internal investigations?

There are no specific restrictions on using technology-assisted review or predictive coding techniques to assist and simplify investigations. The usual e-discovery solutions and software used on the international market are also widely used by larger organisations and law firms here. The golden rule is to plan carefully and make contemporaneous records of important decisions made during the review process and why they were made. Once data for review is collected on a processing platform, the search criteria should be defined based on the investigation’s objectives. If an entity intends to cooperate with the authorities, it should seek its approval of the search criteria prior to review. The review process itself should be guided and supervised by qualified lawyers to ensure compliance with the applicable law and to ensure the legal issues in the investigation are addressed.

7. Witness Interviews

7.1 What local laws or regulations apply to interviews of employees, former employees, or third parties? What authorities, if any, do entities need to consult before initiating witness interviews?

Swiss employment law does not impose specific rules on how to conduct employee interviews. Pursuant to its general obligations and duties of care, an employer must respect its employees’ personal rights. The ground rules for conducting an interview should always be fairness, objectivity and respect for the interviewee. General data protection provisions apply to interviews with employees as well as third parties such as former employees. Using the evidence from Swiss interviews in foreign proceedings may breach the blocking provision in article 271 CC unless prior government authorisation is obtained (cf. also question 6.1 above). If the authorities are investigating the same matter, they may need to be consulted prior to the interview so as not to frustrate their fact-finding.

7.2 Are employees required to cooperate with their employer’s internal investigation? When and under what circumstances may they decline to participate in a witness interview?

Employees are under a general duty of loyalty to their employer, which requires them to comply with their employer’s instructions, and under a duty to account for all their activities during employment by sharing all the products of their work (such as correspondence, analyses, contracts, etc.). These two obligations are widely recognised as entailing a duty to cooperate with the employer’s internal investigations and to participate in witness interviews. In return, the employer must safeguard the employee’s personal rights during the investigation, just as it is obliged to do during the ordinary course of employment. If an employee is targeted by an investigation and at risk of criminal prosecution, he arguably has the right to refuse participation or to answer specific questions pursuant to the privilege against self-incrimination. The authorities on this point are divided.

7.3 Is an entity required to provide legal representation to witnesses prior to interviews? If so, under what circumstances must an entity provide legal representation for witnesses?

The question of whether an employee has a right to legal representation at an interview during an internal investigation is disputed in academic literature. The usual practice is to not provide representation unless the employee’s conduct is in issue and he or she is at risk of criminal prosecution. In such cases, as a matter of good practice, the employee should be afforded the opportunity to seek legal advice, although there is no obligation on the entity to provide or finance it.

7.4 What are best practices for conducting witness interviews in your jurisdiction?

Best practices include giving interviewees sufficient information about: the background to the investigation; the purpose of the interview; any allegations made against them; the intended use of information they provide; and giving an “Upjohn Warning” to disclose that the company’s lawyers do not act for them. Witnesses should also be directed to keep the contents of the interview, and the fact that it is being conducted, strictly confidential. The contents of the interview should be recorded in a memorandum, protocol or even verbatim minutes. If it is likely that an interviewee may expose himself or herself to criminal prosecution, entities should carefully consider whether to grant the interviewee access to legal advice and representation.

7.5 What cultural factors should interviewers be aware of when conducting interviews in your jurisdiction?

Professional interactions in Switzerland tend to be formal and conservative. Employment relationships are often hierarchical but they are also stable, with employees often having worked at the same company for many years. This, together with the fact that internal investigations are still a relatively new phenomenon, may necessitate increased sensitivity and respect when handling witnesses during interviews.

Although most Swiss employees tend to speak English to a relatively high standard, out of fairness, interviewees should always be offered the option of responding to questions in their native language. Four official languages are spoken in Switzerland. Pursuant to their duty of care to employees, employers are advised to engage translators for the relevant language.

7.6 When interviewing a whistleblower, how can an entity protect the interests of the company while upholding the rights of the whistleblower?

Whistleblowers should generally not be treated differently from any other interviewee, particularly if they are company employees. Pursuant to its general duty of care to employees, an employer may be obliged to take measures to protect a whistleblower’s identity if there are reasonable grounds to fear an adverse reaction against the whistleblower.

7.7 Can employees in your jurisdiction request to review or revise statements they have made or are the statements closed?

Under data protection law, an interviewee should be granted the right to review and amend the minutes of an interview. In the interests of accurate fact-finding, minutes should be shown to the interviewee immediately or soon after the interview to avoid any misunderstandings or later disputes as to their contents. However, the minutes should not necessarily be given to the employee in order to reduce the risk of dissemination and protect the integrity and confidentiality of the investigation.

7.8 Does your jurisdiction require that enforcement authorities or a witness’ legal representative be present during witness interviews for internal investigations?

No, there is no requirement that enforcement authorities be present at witness interviews. Such attendance would be unusual, if not detrimental to the purpose of an investigation, because it is likely to inhibit the free communication of information. There is also no requirement that a witness be legally represented. However, if there is a likelihood that a witness risks criminal sanction and/or incriminating himself or herself during the interview, it is recommended that, as a matter of good practice, the interviewee either be advised that he or she can refuse to answer questions that would tend to incriminate himself and/or be given the chance to seek legal advice or representation. This is particularly so if the witness is an employee.

8. Investigation Report

8.1 How should the investigation report be structured and what topics should it address?

There are no strict rules on how to structure an investigation report. Investigations pursuant to statutory AML and regulatory banking compliance obligations may benefit from separating the findings of fact from legal assessment in order to maximise the prospects. As a matter of best practice, a report should include the following: (i) an executive summary; (ii) the background to the investigation, its triggers, scope, purpose and the legal issues it addresses; (iii) a description of the document preservation, collection and review processes; (iv) a chronology of relevant facts; (v) the investigative findings from document reviews and interviews; (vi) an overview of the applicable legal and regulatory framework; (vii) legal analysis; (viii) conclusions as to responsibilities and liability; and (ix) recommendations for the next steps and remediation. As far as practically possible, the report should attach any evidence referred to in the body of the report in an appendix.

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